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2014 May - June

Enactment of laws to protect the right to equal opportunity and access and the right to personal choice and empowerment for persons with disabilities has not sufficed to remove barriers to such rights. But there have been some good developments.

Legal services delivery systems need to handle a much greater number of cases; we must become more efficient and more effective. Volunteer lawyers’ programs and hotlines are often cumbersome and not well utilized, while court-based self-help centers effectively handle uncontested court cases. Unbundled legal services with or without court representation, specialized courts, and efficient systems developed by other providers are the recommended delivery approaches for contested cases.

Emotional-support animals can have a therapeutic benefit for people with psychiatric disabilities. In housing that prohibits pets, however, some requests for emotional-support animals can be contentious. Advocates can use the Fair Housing Amendments Act of 1988 to secure emotional-support animals as reasonable accommodations for their clients with mental health disabilities. Emotional-support animals do not necessarily have to undergo specialized training to be considered reasonable accommodations.

Under the Individuals with Disabilities Education Act (IDEA), states receiving federal public education funding are required to provide a free appropriate public education to children with disabilities. From the beginning, the IDEA envisioned that appropriate education for some children will have behavioral supports and interventions. Attorneys who advise parents and litigate behavioral-services cases under the IDEA should gain a basic understanding of behavior analysis, assessment, and intervention, and of the legal landscape under decisional law.

Bullying disproportionately affects students with disabilities, and it has an impact on not only their emotional and physical health but also their academic performance. Some courts have used a test modeled on the Davis v. Monroe County Board of Education sex discrimination test to evaluate peer-to-peer disability harassment. A different, student-focused test more rooted in the Individuals with Disabilities Education Act may help more students get relief and push school officials to take a more proactive stance against bullying.

Through guardianship the state removes the decision-making authority of an allegedly incapacitated person. But Article 12 of the Convention on the Rights of Persons with Disabilities holds that legal capacity should be enjoyed by everyone regardless of disability. To that end, advocates are working to move from the substituted decision making of guardianship to a new system of supported decision making.

Barriers to equal rights in public accommodations, housing, employment, education, and other publicly available programs are not uncommon for people with disabilities. With broad authority under specific federal statutes, Protection and Advocacy (P&A) System advocates still must protect the civil, legal, and human rights of persons with disabilities. Of interest to advocates of low-income persons are aggressive enforcement of the “integration mandate” conferred by the Americans with Disabilities Act and the Olmstead v. L.C. ruling; protection against discrimination in housing under the Fair Housing Amendments Act of 1988; and protecting youth from abusive use of restraint and seclusion with the advocacy strategies offered by the Rehabilitation Act and the Individuals with Disabilities Education Act.

Advocates can use the Convention on the Rights of Persons with Disabilities even though the United States has not ratified the treaty. This is so because some judges have considered human rights treaties and foreign legal sources as persuasive arguments. Moreover, advocates can push for changes in state law based on changes that other countries have made due to the treaty. Understanding the convention’s historical foundations, provisions, and implementation helps advocates improve the lives of people with disabilities.